Legal blog by WARDS LAWYERS PC.

Having a dispute with your neighbour? Well, before you call your lawyer, think about this well-known (at least in legal circles) decision by the Court about feuding neighbours taking up valuable and limited judicial resources.

Neighbours. Mutual allegations about family pets, profanity, disturbing the peace and misbehaviour generally. An injunction was sought.

The Outcome:

A pox on both their houses. The Court dismissed all of the claims and, effectively, admonished both sides for usurping the limited resources of the judiciary as a forum for their Hatfield-McCoy-style dispute. Both sides, which obviously were sufficiently wealthy to fund this litigation, got no costs.

Here is the actual decision:

ENDORSEMENT

[1] The parties to this action live across the road from each other in Toronto’s tony Forest Hill neighbourhood. The video footage played at the hearing shows that both families live in stately houses on a well-manicured, picturesque street. They have numerous high end automobiles parked outside their homes.

[2] The Plaintiff, John Morland-Jones, is an oil company executive; the Defendant, Gary Taerk, is a psychiatrist. They do not seem to like each other, and neither do their respective spouses, the Plaintiff, Paris Morland-Jones and the Defendant, Audrey Taerk.

[3] In this motion, the Plaintiffs seek various forms of injunctive relief on an interlocutory basis. It all flows from the Plaintiffs’ allegation that the Defendants have been misbehaving and disturbing their peaceful life in this leafy corner of paradise.

[4] As counsel for the Plaintiffs explains it, the Plaintiffs’ house is ringed with eleven video cameras for security purposes. Two of them are aimed directly at the Defendants’ front door and driveway. They record, 24/7/365, every movement in and out of the Defendants’ home. The Plaintiffs can see when Ms. Taerk leaves to go shopping, they can study what the Defendants are wearing every morning when they pick up their newspaper on the front step, they have a videotaped record of when Mr. Taerk goes to work or walks his dog, etc.

[5] Nothing that the Defendants do escapes the Plaintiffs’ video camera lens. The cameras trained on the Defendants’ house may or may not provide the Plaintiffs with a sense of security, but as demonstrated by the dozen or so videos produced in this motion, the Plaintiff’s “security system” is as much a sword as it is a shield.

[6] The hearing before me started off with counsel for the Plaintiffs playing a short excerpt from security footage shot by the Plaintiffs several years ago, in which Ms. Taerk is seen performing a “poop and scoop” after a dog did its business on her front lawn. The Plaintiffs’ security camera shows her crossing the street with the plastic bag-full in hand, and then walking toward the Plaintiffs’ driveway where the garbage cans were out for collection. Although the impugned deed actually takes place off camera, Ms. Taerk can be seen moments later returning to her side of the street empty-handed.

[7] Apparently, much to the consternation of the Plaintiffs, she deposited the goods in the Plaintiffs’ garbage can. In doing so, she failed to walk to the back of her house to place it in her own receptacle like a truly good neighbour would do.

[8] The “dog feces incident”, as counsel for the Plaintiffs calls it, is a high point of this claim. At the hearing, it was followed by counsel’s description of a cease and desist letter sent to the Defendants in 2008 by a lawyer then representing the Plaintiffs, which describes what is now referred to by counsel as the “dog urination issue”. This letter enclosed photographs – apparently stills taken from the Plaintiffs’ non-stop video footage – documenting Mr. Taerk walking his dog and occasionally allowing it to lift its leg in a canine way next to the bushes lining the Plaintiffs’ lawn.

[9] The Defendants did not respond to this erudite piece of legal correspondence. Counsel for the Plaintiffs characterizes this silence as an “admission”, although it is unclear just what legal wrong was being admitted to.

[10] And it goes downhill from there. For example, the Defendants are accused of occasionally parking one of their cars on the street in a legal parking spot in front of the Plaintiff’s home. The Defendants do this now and then, according to the Plaintiffs, just to annoy them. This accusation was admittedly pressed rather sheepishly by Plaintiffs’ counsel, since the Plaintiffs have conceded that they park one of their own cars in front of the Defendants’ home every day. Indeed, the Plaintiffs cannot help but concede that fact, since their own non-stop video surveillance of the Defendant’s house shows the Plaintiff’s car sitting there day after day.

[11] The Plaintiffs also complain quite vociferously about the fact that the Defendants – in particular Ms. Taerk – are in the habit of sometimes standing in their own driveway and taking cell phone pictures of the Plaintiffs’ house across the street. Apparently, the Plaintiffs, who keep two video cameras trained on the Defendants’ house night and day, do not like their own house being the target of Ms. Taerk’s occasional point-and-click.

[12] The Plaintiffs also accuse Ms. Taerk of taking pictures of the Plaintiffs’ housekeeper taking their dog for its daily constitutional. The video tapes show the housekeeper leading the dog to what they describe as its favorite grassy spot in a parkette only feet from the Defendants’ front lawn. The housekeeper has deposed that she goes there with the dog every day. Ms. Taerk has made of show of documenting that activity.

[13] Another complaint submitted by the Plaintiffs is that Mr. Taerk has taken up the habit of walking by their house with a voice recorder in hand, trying to catch some of the verbal exchanges between the parties. According to Mr. Taerk’s affidavit, Ms. Morland-Jones occasionally shouts profanity or other insults at him when he is on his walks, so he now only ventures onto the road armed with his dictaphone. He tends to hold it at the ready in his right hand as he walks rather than holstering it on his hip.

[14] The controversy has even extended to other lucky residents. The Plaintiffs summoned under Rule 39.03 no less than four of their neighbours to testify on the pending motion, no doubt endearing themselves to all of them. One witness, a lawyer, was asked to confirm that he had warned the Plaintiffs about the Defendants when they first moved into the neighbourhood; he responded that can recall saying no such thing. Another witness, a professor, was asked to confirm that she sold her house for below market value just to get away from the Defendants; she said she did not.

[15] Each of the summonsed witnesses was asked by Plaintiffs’ counsel to confirm the affidavit evidence sworn by Mr. Morland-Jones that the Defendants are difficult people. None of them seemed to want to do that, although one of them did recount that the Defendants had objected to a renovation permit that the Plaintiffs once sought, and that the matter had proceeded to the Ontario Municipal Board. Another of the neighbours was asked to recount the rude nicknames that some neighbourhood children had given Ms. Taerk when she was a substitute teacher at a nearby school.

[16] In what is perhaps the piece de resistance of the claim, the Plaintiffs allege that the Defendants – again focusing primarily on Ms. Taerk – sometimes stand in their own driveway or elsewhere on their property and look at the Plaintiffs’ house. One of the video exhibits shows Ms. Taerk doing just that, casting her gaze from her own property across the street and resting her eyes on the Plaintiffs’ abode for a full 25 seconds. There is no denying that Ms. Taerk is guilty as charged. The camera doesn’t lie.

[17] For their part, the Defendants have not been entirely innocent. They appear to have learned that the Plaintiffs – and especially Ms. Morland-Jones – have certain sensitivities, and they seem to relish playing on those sensitivities. They realize, for example, that Ms. Morland-Jones does not enjoy having her house photographed, and so Ms. Taerk tends to take her cell phone out and point it at the Plaintiffs’ house precisely when Ms. Morland-Jones can see her doing it.

[18] Ms. Taerk has testified that, in fact, she has not taken any pictures but rather has been pretending to do so by simply pointing her phone and clicking it randomly. Ms. Taerk presents this as a justification for not producing any photographs in the evidentiary record, but of course the explanation reflects more malevolence than what it attempts to excuse. In any case, Ms. Morland-Jones can be counted on to respond as predicted. It is a repeated form of hijinks that could, if a sponsor were found, be broadcast and screened weekly, although probably limited to the cable channels high up in the 300’s.

[19] The same is true with Mr. Taerk’s voice recording technique. Although Mr. Taerk may have started carrying this device in order to record Ms. Morland-Jones’ spontaneous eruptions, cause and effect have now been reversed. Mr. Taerk appears to enjoy walking by the Plaintiffs’ residence with his dictaphone conspicuously raised to shoulder level when he sees Ms. Morland-Jones in her garden, which then prompts the very outbursts that he was at first reacting to. On one of the tapes, Ms. Taerk can actually be heard prompting Mr. Taerk to go out and goad Ms. Morland-Jones in this fashion.

[20] The Plaintiffs’ teenage son has testified that when he was 10 years old, Ms. Taerk instructed him to stay off the public parkette adjacent to her home, saying that it belongs to the Defendants. He also deposed that when he was 16 the Defendants appeared to be photographing him one day as he sat in a parked car in front of his house – or, more accurately, just across from the Defendants’ house – with his girlfriend. He speculated, but could not entirely recall, precisely what he and the young woman were doing in the car at that moment.

[21] The antics have only gotten worse since then. Ms. Morland-Jones has shouted at the Taerks from her front yard, and Ms. Taerk has given Ms. Morland-Jones “the finger” from her front driveway. The Defendants have apparently called the police on the Plaintiffs numerous times in recent years; the Plaintiffs have responded by retaining a criminal lawyer to attempt to have a peace bond issued that would restrict the Defendants’ movements. All of that has been to no avail.

[22] Now the Plaintiffs have pursued civil litigation. To their credit, or perhaps to the credit of their counsel who has advised them well in this regard, the Defendants have not counterclaimed. Having acted provocatively to egg the Plaintiffs on and to prompt this gem of a lawsuit, the Defendants did not need to bring any claim themselves. The Plaintiffs have been their own worst adversaries.

[23] In my view, the parties do not need a judge; what they need is a rather stern kindergarten teacher. I say this with the greatest of respect, as both the Plaintiffs and the Defendants are educated professionals who are successful in their work lives and are otherwise productive members of the community. Despite their many advantages in life, however, they are acting like children. And now that the matter has taken up an entire day in what is already a crowded motions court, they are doing so at the taxpayer’s expense.

[24] As I explained to Plaintiffs’ counsel at the hearing, a court cannot order the Defendants to be nice to the Plaintiffs. Litigation must focus on legal wrongs and legal rights – commodities which are in remarkably short supply in this action. As my colleague Perell J. put it in High Parklane Consulting Inc. v Royal Group Technologies Ltd., [2007] OJ No 107 (SCJ), at para 36, “[i]t is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another…”

[25] I cannot help but comment that the courts as public institutions are already bursting at the seams with all manner of claims. To add to that public burden the type of exchanges that these parties have engaged in would be to let the litigious society stray without a leash – or perhaps without a lis. I note the observation made to this effect by the Supreme Court of New York in Johnson v Douglas, 734 NYS 2d 847, 187 Misc 2d 509, at 510 (2001):

Although we live in a particularly litigious society, the court is not about to recognize a tortious cause of action to recover for emotional distress due to the death of a family pet. Such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads of the court in resolving serious tort claims for injuries to individuals.

[26] What is true regarding the death of a family pet is certainly true regarding the scatology of a family pet. There is no claim for pooping and scooping into the neighbour’s garbage can, and there is no claim for letting Rover water the neighbour’s hedge. Likewise, there is no claim for looking at the neighbour’s pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand, or just plain thinking badly of a person who lives nearby.

[27] There is no serious issue to be tried in this action. The Plaintiff’s motion is therefore dismissed.

"The holiday season is a jolly-busy time to be an employment lawyer. Not only do we get to spend time with our friends and families, but we are also often asked to help our clients deal with the fallout of the infamous alcohol induced holiday party incident. Of course, an ounce of prevention is worth a pound of cure and here are some tips to planning and hosting a successful and (hopefully) incident free holiday party.

1. Alcohol Consumption

The over-consumption of alcohol can lead to a number of unfavourable outcomes. Consider limiting the in-take of alcohol by guests by: setting a fixed period of time where alcohol will be served; restricting the types of alcohol that are served (e.g. serving wine and beer options, excluding spirits or hard liquor); providing a controlled number of drink tickets per guest; hiring an independent bartender; and, serving lots of delicious food so guests don’t only drink.

2. Location & Transportation

Consider holding the party offsite. Consider safe transportation options that are available for employees when leaving the party. Pre-arrange designated drivers or transportation with a local company; ensure that there are taxis on standby and/or provide taxi chits to employees; or use a licensed operator to drive the individual and his/her vehicle home.

3. Discrimination

Given the abundance of faiths, religious denominations and practices with which employees may affiliate themselves, ensure that holiday parties remain non-denominational in nature. Consider the possibility that alcoholics or those recovering might be attending and ensure that there are tasty non-alcoholic alternatives. Ensure that employees don’t feel excluded and eliminate the likelihood of a human rights violation.

4. Harassment

Where alcohol is being consumed, there is an increased risk of inappropriate behaviour. In order to remind employees of expectations regarding mutual respect, it is good practice to distribute a copy of the organization’s anti-harassment policy well in advance of the holiday party. Ensure that employees are mindful of their actions toward others while in attendance. Including a copy of the organization’s dress code may also be worthwhile, reminding employees that expectations for appropriate attire in the workplace remain unchanged. Consider inviting spouses/partners – it might help keep behaviour in line.

5. Communication & Monitoring

Transparent and consistent communication of expectations surrounding alcohol consumption, appropriate behaviour and suitable attire, well in advance of the holiday party, will ensure that employees are aware of their responsibilities.

Providing details about transportation options prior to the holiday party, will afford employees with the opportunity to arrange their journey home safely and without setback.

Assigning one or two individuals from the organization with the responsibility to monitor guests’ behaviour and alcohol consumption, and ensure that they obtain appropriate transportation home, will further safeguard employees and reduce the organization’s liabilities."

So, enjoy the blow out, but practice good pre-planning and management of your holiday party.

Both real and fake Christmas trees can conflagrate in mere seconds, filling the room with smoke and fire that can spread relentlessly through your entire home.

Sorry, we don’t mean to be The Grinch, but many festive families do not give enough attention to these incendiary homages.

The record is rife with terrible stories about avoidable injury and damage. Even your alarms may not give enough advance warning to keep pace with the agility and speed of the flames.

This holiday season, consider taking these steps, if you do not already:

• Look for a tree with vibrant green needles that are hard to pluck and don't break easily from its branches. The tree shouldn't be shedding its needles readily
• Always place your tree away from heat sources like fireplaces, radiators, candles, heat vents or lights and keep the tree base filled with water to avoid a dry out
• Double check your home alarms have fresh batteries and are working properly
• Make sure all your indoor and outdoor Christmas lights are ESA approved (it should say on the box) and discard/recycle any damaged lights or bulbs
• Any lights you use outdoors must be labeled suitable for exterior placement and be sure to plug into a ground-fault circuit interrupter protected receptacle
• Keep all your holiday candles away from your Christmas tree, surrounding furniture and décor
• Bedtime means lights off - don't forget to turn your Christmas tree light switch each night and, if you use an automated timer, double-check that it is working properly
• When your tree begins to drop its needles profusely, it's time to say goodbye to your evergreen foliage until next year, even if your holidaying is not quite finished yet
• If you buy a pre-cut tree, consider sawing off an inch or two from the stump of the tree so water can be easily absorbed

It will be here before you know it. Our (non-exhaustive) tips to you and your family for a safe, fun and legally-prudent Christmas Day for 2019:

1) On Christmas Eve after early bed time, apply a liberal, but discreet, thin layer of baby powder on the floor outside each child’s room to discourage middle-of-the-night stocking snooping;

2) When you retire on Christmas Eve to wait for Santa, fasten green painter’s tape plentifully between the newel posts at the top of the stairs to further discourage over-enthusiastic stocking visitation before Mom and Dad are up, dressed, coffeed-up and ready to go (enough to ensure a child cannot pass through the tape wall without sound and extensive effort);

3) Turn over the toy gift and actually untie/unravel all of those annoying twist-ties holding your child’s toy in its excessive plastic packaging – don’t try to jam scissors or a sharp knife in to that tight space to try to cut the ties where they wrap around the toy itself;

4) Prevent your child (and husband/father) from testing the 9 volt battery for the new toy by pressing it on their tongue – this has actually caused injury and emergency room visits;

5) Take out all of the pins from your new shirt before trying it on;

6) Avoid conveniently grabbing the sharp knife from the kitchen to cut open the hard plastic packaging for that toy – take the time to find and use the correct tool, like scissors or a utility knife with a guard;

7) Pick up the broken pieces of the hard plastic wrapping from the floor after the gift unwrap – avoid the pieces getting lodged in a barefooted, housecoat-wearing, messy-haired family member;

8) Read the Pot of Gold chocolate index before selecting – there are reported cases of severe allergic reaction caused by mistakenly believing your choice was the cherry-filled (i.e., avoid the marzipan one);

9) Don’t carve the turkey after consuming three (3) alcohol drinks or more;

10) Leave adequate space between you/your children and the Christmas tree branches when retrieving gifts under the tree – eye lacerations are a common Christmas morning accident;

11) Remind your elderly family members at the Christmas dinner to chew their meat thoroughly – most Christmas mishaps often involve choking at X-Mas dinner;

12) Ensure the zipper is drawn down before your enthusiastic child tries on that new jumper, coat or hoodie – a common source of eye injury on the holiest of mornings; and

13) Pull the knife across the avocado and twist it (to remove the stone), rather than stabbing down and prying it out – there are recorded emergency room visits about this.

The CASL requirements about Commercial Electronic Messages (“CEMs”) have been the law since July 1, 2014.

Rogers is not the first to be fined. Porter Airlines paid a significant penalty earlier ($150,000). A company called Compu-Finder paid a very significant $1.1 million earlier for “spamming” businesses.

The CRTC alleged that Rogers had:

sent CEMs either containing an unsubscribe mechanism that did not enable the person to indicate their wish to no longer receive messages, or that was not able to be “readily performed”;

sent CEMs for which the unsubscribe mechanism did not contain an electronic address that was valid for the required minimum of 60 days after the message was sent; and

failed to give effect to unsubscribe requests within the required 10 business days.

Rogers settled – perhaps wisely.

Rogers agreed to other remedial measures, too, such as updating and implementing a better internal compliance policy for spamming, reviewing and revising its written policies, developing training programs and registering and tracking all complaints related to CEMs and their resolution.

Individuals are not immune for anti-spamming law in Canada. Up to $1,000,000 per infraction for individuals and up to $10,000,000 per infraction for corporations.

CASL is administered through a complaints-based system and the CRTC provides a Spam Reporting Centre for the submission of complaints.

Individuals and businesses utilizing CEMs should review the requirements of the CASL to ensure they are complying with the legislation.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

When you bought it, you likely purchased title insurance. Most do, these days.

Title insurance policies in Ontario are extensively used for home buying, but the law has not kept pace on these types of policies, what they mean, what they actually cover, and the like. There is a gap.

Title insurance remains somewhat of a mysterious insurance policy in Ontario, including for many lawyers. There simply have not been enough cases about the scope and true coverage of title insurance policies to understand them fully and properly. Of course, this presents risk to both new home buyers and the lawyers who represent them.

Enter the Ontario Court of Appeal recently.

Title insurers typically narrowly interpret their policies when it comes to the scope of coverage available. Often the scope of coverage relates to “marketable title”. Generally, title insurers tend to limit their scope of coverage position to cases where the homeowner is forced by a government authority to remove or remedy a structural defect, pursuant to section 8 of the Ontario Building Code Act, which specifically addresses permitting requirements, as distinct from a sub-section 15(4) order against the homeowner, which addresses a building that is determined to be unsafe. Title insurers often take this position, but now they will not be able to do so.

The case: MacDonald v. Chicago Title Insurance Company of Canada (Ontario Court of Appeal, 2015).

The homeowner was issued an order by the municipality to remedy an unsafe building, created because a former owner of the property had illegally removed a supporting wall.

The homeowner’s title insurer denied the claim.

Eventually the case made its way to the Court of Appeal, who disagreed with the lower Court and ordered that the title insurance was liable for the cost to remedy the unsafe defect in the home. The homeowners were also awarded costs for their appeal and the lower Court process.

Effectively, this means that if is illegal work done in your home by a former owner that did not comply with the building code at the time, your title insurer (assuming you purchased title insurance when you bought the property), should be covering the cost of a post-closing work order issued by the municipality.

Good to know.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

Often an elderly person, or person who is in need of some financial management assistance, adds an adult child or family member to a pre-existing bank account, making it a joint bank account.

Commonly there is no paperwork made when this is done, such as the elderly person indicating, in writing, whether:

- the intention is only for assistance in managing the accounts funds, such as paying bills, etc.

- compensation is to be received by the added person

- if the elderly person dies, if the funds remaining in the account are to be a gift to the added person and pass to that person by joint survivorship

In fact, often there is nothing in writing verifying the arrangement, which regularly creates conflict and, sometimes, litigation between the person who is added to the account and the elderly person’s family members, usually after the elderly person passes.

If you are added to a pre-existing joint bank account, for example, you could be assuming a fiduciary duty to the person who adds you, which brings with it duties at law that expose you to claims by others.

What is a fiduciary? Generally, the legal definition is:

a) a person who has scope for the exercise of some discretion or power;

b) a person who can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and

c) the other person (the beneficiary) is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The person added to the account can face allegations in a lawsuit that:

(i) the person added, who is often an adult child, had or acted in a fiduciary relationship to the elderly parent (in the management and operation of the joint account);

(ii) the person breached that fiduciary duty by, for example, making payments to himself or herself, or making payments that had some benefit to that person in some way;

(iii) the added person should be held liable to repay the amounts for breach of fiduciary duty and breach of trust;

(iv) the added person should be required to provide a full accounting for the management and operation of the joint account, repay money paid to himself or herself, damages for breach of trust and fiduciary duty and, sometimes, punitive damages are claimed, too.

There is no definitive law in Ontario about whether, for example, an adult child added to a joint bank account is automatically a fiduciary and trustee de son tort and, therefore, exposed to liability for breaching those duties, but there is authority in Ontario for this and, consequently, this risk.

What remains unclear in Ontario is whether any person who is added to a pre-existing joint bank account by another (even just to assist with financial management), but who does not contribute to the account, will be automatically determined to be a fiduciary and, therefore, held to that standard, or whether this fiduciary duty will simply apply to everyone who holds (bank) accounts jointly.

As a precaution, if you will be added to a joint bank account (by a parent, for example), there should be, in writing, a statement by the person adding you about:

Suing a deep-pocketed defendant can be problematic from a litigation funding angle. An emerging trend in other countries is funding by a third party to finance the litigation, if the litigation is meritorious. This 'level-the-playing-field', access-to-justice-premised emergence is finding its way into Ontario law. There are both proponents and those who are critical of this development, both from a legal philosophical and profiteering perspective.

Typically this type of funding is only an option for larger-scale cases with significant damages at play, rather than litigation with less prospect for significant recovery.

Lincoln Caylor of Bennett Jones LLP recently blogged about this litigation funding emergence in a helpful, concise way, which is appears below, as published by Lexology on Dec. 8, 2015:

Originally published in FraudTalk, ICC FraudNet.

"Your drinking water has been poisoned, your car is defective, or you have lost your life savings in an investment fraud. Neither you, nor the other victims have the money to pay for a lawsuit, but an investment company backs the suit, allowing you to mount a vigorous case. A win would not only net damages for you, but a return on investment for the company that banked the lawsuit. This is the brave new world of third-party litigation funding, or litigation finance, in which institutional investors offer financing in return for a contingency in the recovery. One of the most critical developments in civil and potentially commercial litigation, the practice has the potential to impact many types of cases, including international fraud, environmental and corporate cases worldwide.

Originating in Australia and the UK more than a decade ago, third party litigation funding agreements (LFA’s) are becoming commonplace in class actions in Canada, and have spread to the United States and Asia. However, while LFAs have yet to become as common in commercial litigation, a court ruling in Ontario earlier this year (Schenk v. Valeant Pharmaceuticals International Inc.,2015 ONSC 3215), could signal further expansion of the practice. Although the motion for approval of the LFA was ultimately denied, the court permitted the LFA to be amended in accordance with its decision. In the wake of the decision from Schenk, Canadian courts are bound to see more LFAs in commercial litigation. In a global world, other jurisdictions may not be far behind.

The deck is often stacked against plaintiffs who dare to take on companies with deep pockets. LFAs level the playing field, by providing access to the courts for parties who would not otherwise be able to litigate a case. Funders can also balance lopsided financial resources between parties and assist parties who would otherwise accept lower settlements, because they lack the financial resources to continue with the litigation.

Third-party funders do not fund meritless cases, or at least those that do will not be in business for long. Accordingly, access to funding will not clog the courts with meritless cases.

Meanwhile, as the debate continues, what are the big issues, responses by the courts and the future of LFAs?

Are LFAs a hindrance or do they actually facilitate the administration of justice?

Courts have aimed to strike a balance in governing the use of LFAs, between their potential to interfere with the administration of justice and their potential to unlock greater access to justice. On one hand, concerns arise when third-party funders are permitted to interfere with lawsuits in which they have no legitimate interest. Intermeddling in a dispute in which a third-party has no interest without justification or excuse is known in common law as maintenance. Profiting off such a dispute is known as champerty. The common law prohibitions against maintenance and champerty have historically deterred LFAs.

On the other hand, there isthe notion that LFAs facilitate access to justice, a concern that has grown increasingly prevalent in recent years. In the commercial litigation context, contingency retainers are less common than in class actions or personal injury litigation. As such, the risks and expenses associated with litigation fall primarily on the client. The often complex and document heavy nature of commercial litigation typically makes it very expensive and therefore a lack of access to adequate funding may create a barrier to justice.

Given that investments are designed to make a profit, when is that profit mercenary?

In Schenk, the primary basis on which the court refused to approve the LFA was that the third-party funder could potentially receive over 50% of the proceeds of the litigation. That threshold was adopted from Ontario's statutory cap on contingency fee agreements, which is set at 50%.In the court's view, an LFA in which the third-party could receive the majority of the proceeds did not provide access to justice. Rather, the LFA provided an attractive business opportunity to the third-party, who suffered no wrong. However, obviously funders find investing in litigation is good business when the payments are less than 50% or they would not invest.

Limiting the third-party funder's decision making power

Third-party funders may exercise influence over the litigation where the funder is permitted to terminate the LFA. Courts have refused to approve LFAs where the funder possessed the power to terminate the LFA without cause (see e.g. Metzler Investment GMBH v. GildanActivewear Inc., [2009] O.J. No. 3315 (Sup. Ct.)). However, where reasonable limits are placed on the funder's ability to influence the litigation through termination of the LFA, courts will not interfere. In Schenk, the funder possessed the ability to terminate the LFA in the event that it reasonably ceased to be satisfied with the merits of the claim. This was viewed as a reasonable limit on the power to terminate the LFA.

Courts may require the disclosure of an LFA

An LFA itself is not confidential, and its terms may be required to be disclosed. In the recent International Centre for Settlement of Investment Disputes tribunal decision from MuhammetÇap&SehilInşaatEndustriveTicaret Ltd. Sti. v. Turkmenistan, the claimants were ordered to disclose the identity of the third-party funder and the terms of the LFA. Grounds cited by the tribunal for requiring the disclosure included the potential that a conflict of interest existed between the arbitrators and the funder as well as the opposing party's intention to apply for security for costs.Similarly, Canadian courts have required LFAs to be disclosed to opposing parties (see e.g. Fehr v. Sun Life Assurance Co. of Canada, 2012 ONSC 2715).

LFAs in the United Kingdom

With its lengthier history of permitting LFAs, the United Kingdom has a more progressive approach in place. In particular, the U.K. has developed the Association of Litigation Funders of England and Wales, which is an independent body whose purpose is to regulate litigation funding. A Code of Conduct for Litigation Funders was also put into place, which mirrors some of the concerns discussed above that were addressed by Canadian courts. For example, litigation funders may not try to take control of the litigation, may not terminate funding absent a material adverse development, and must have the financial resources to pay for the litigation.

In Schenk, the court noted that the third-party funder was a member of the Association of Litigation Funders of England and Wales and that it was therefore expected to adhere to the Code of Conduct.

The future of LFAs in Canada and beyond

In the absence of legislation or a Code of Conduct, LFAs are still governed by the courts in Canada. As such, there are no clear guidelines and no guarantees that any particular LFA will hold up in court. However, even where LFAs are not approved, Canadian courts have provided guidance on how to amend the LFAs and permitted the parties to renegotiate the LFAs accordingly.

Although the court in Schenk opened the door for LFAs in the commercial litigation context, it may be some time to feel the impact of the decision. This is because parties to commercial litigation often have their own financial resources with which to finance the litigation. However, where individuals are involved in commercial disputes, where sophisticated parties lack adequate financial resources, or where sophisticated parties wish to hedge the economic risks associated with litigation, LFAs will continue to be a valuable tool."

Funding your litigation may be possible with the help of third party assistance, but careful consideration should be given by you and your counsel about the ins-and-outs of this type of arrangement.

Let it snow, let is snow, let is snow......What am I obliged to do, as a homeowner, for snow and ice?

In Ontario, homeowners have a a duty to keep their property reasonably safe for others.

Section 3 of the Occupiers’ Liability Act (Ontario) reads:

“3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.”

This means that you, as a homeowner, need to keep your driveway, steps and the like reasonably clear of snow and ice for others who visit you, including delivery people, guests and even strangers, such as canvassers and people trying to inspect your hot water heater to sell you an allegedly better program.

If you do not, you may face liability for failing to keep your property reasonably safe for others.

While home insurance is designed to offer some protection to you, it is important that you act reasonably to keep your property reasonably clear of ice and snow – you should not do nothing and rely on a home insurance policy to protect you if you are sued. Claims will also cause your premiums to increase, too, if your home insurer does not decide to drop you as a insured client altogether if you make a claim and you failed to take reasonable steps to keep your property reasonably clear of ice and snow.

There is also a question in Ontario about whether a homeowner must also take reasonable steps to keep the municipal sidewalk clear of dangerous snow or ice. The best practice is to keep it monitored and, if the municipality is not properly clearing it regularly and keeping it in good condition, taking steps should be considered, such as shoveling, using sand or salt and calling the municipality to attend to take proper steps.

You should take these steps as soon as you can after a snowfall or ice build up. If you are too busy or away, you should consider hiring a snow removal contractor to help you or ask a neighbour to do it for you temporarily.

Avoid a lawsuit, be winter safe at your home.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.